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2010 DIGILAW 2553 (ALL)

KHURRAM SIDDIQUI v. STATE OF U. P.

2010-08-20

SHRI KANT TRIPATHI

body2010
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard learned counsel for the applicant and learned AGA for the State and perused the record. 2. By means of this application under Section 482 Cr.P.C. the order dated 3.6.2010 passed by the learned Special Judge, J. P. Nagar in Criminal Revision No. 24 of 2010 and the order dated 4.2.2010 passed by learned Chief Judicial Magistrate, J. P. Nagar in Misc. Case No. 1514 of 2009 have been impugned. 3. It appears that the applicant moved an application under Section 156 (3) Cr.P.C. with the allegations that the sale deed relied on by the respondent Nos. 3 to 5 is a forged document and the same was allegedly executed by one Subhash Prakash on 28.11.2008. On enquiry, the applicant found that the alleged seller Subhash Prakash was not in existence and some one else impersonated as Subhash Prakash and executed the sale deed. It is also alleged that the respondent Nos. 3 to 5 in collusion with the witnesses Harish Chandra and Babu Ram, in order to grab the property of Waqf, produced someone else as Subhash Prakash and obtained the sale deed. 4. Learned Chief Judicial Magistrate was of the view that the dispute is of civil nature and the question whether or not the sale deed is a forged document, can only be decided by the Civil Court. It was also held that a litigation is also pending in the Revenue Court. Learned Chief Judicial Magistrate relying on Indian Oil Corporation v. NEPC India Ltd and others, (2006) VI SCC 736, formed the opinion that criminal proceeding in regard to a civil dispute should not be permitted to proceed. 5. Acting on the same line the Additional Sessions Judge dismissed the revision after referring to the observations of the Apex Court in the aforesaid case. 6. In the case of Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), (2009) 5 SCC 528 , the Apex Court has held: “Indisputably, in a given case, a civil proceeding as also a criminal proceeding may proceed simultaneously. Cognizance in a criminal proceeding can be taken by the criminal Court upon arriving at the satisfaction that there exists a prima facie case. ................It is now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding. Cognizance in a criminal proceeding can be taken by the criminal Court upon arriving at the satisfaction that there exists a prima facie case. ................It is now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible. If primacy is to be given to a criminal proceeding, the civil suit must be determined on its own merit, keeping in view the evidence brought on record therein and not in terms of the evidence brought in the criminal proceeding. 7. The aforesaid principles have been reiterated by the Apex Court in the case of Devendra and others v. State of U.P. and another, (2009) 7 SCC 495 . The Apex Court has observed in para 13 as follows: “There cannot, however, be any doubt or dispute whatsoever that in a given case a civil suit as also a criminal proceeding would be maintainable. They can run simultaneously. Result in one proceeding would not be binding on the Court determining the issue before it in another proceeding. In P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765 , the law was stated, thus” “11. It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceeding or criminal proceedings shall be stayed depends upon the fact and circumstances of each case.” 8. It is thus well settled that a civil as well as criminal proceeding in regard to same act may be launched and continued simultaneously. If certain acts constitute an offence, the criminal proceeding cannot be held up or kept in abeyance till the finalization of the civil proceeding. Therefore the views of the Courts belongs were not correct. 9. What was required from the learned Magistrate, was to see whether the facts stated in the application moved under Section 156(3) constituted commission of any cognizable offence or not. In other words, it was the duty of the Magistrate to see whether or not the facts put forth before him had disclosed that the impugned sale deed was a forged document fabricated by the respondent No. 2 for grabbing the waqf property. In other words, it was the duty of the Magistrate to see whether or not the facts put forth before him had disclosed that the impugned sale deed was a forged document fabricated by the respondent No. 2 for grabbing the waqf property. If it was so, what offence was made out from the facts disclosed. These aspects of the matter have not been given any consideration by the learned Magistrate as well as by the learned Additional Sessions Judge while passing the impugned orders. 10. In view of the aforesaid reasons the application is allowed and the impugned orders dated 4.2.2010 and 3.6.2010 are quashed. The learned Chief Judicial Magistrate, J.P. Nagar is directed to reconsider the application under Section 156 (3) Cr.P.C. and to pass a fresh order in accordance with law. —————